Justices Allow Religious Groups After-Hours Use of Public Schools

By LINDA GREENHOUSE,

Published: June 8, 1993

WASHINGTON, June 7—
The Supreme Court ruled today that public school systems that open their schools to after-hours use by community groups must permit religious groups to use the buildings on the same terms.

The 9-to-0 decision in a case from Long Island had the effect of overturning a New York State law that state courts and education officials had long interpreted as barring the use of school property for any religious purpose.

In a separate church-state case today, the Court kept alive a raging debate over prayers at public school graduation ceremonies by refusing to hear a Houston-area case in which an appeals court allowed student-led prayers. Last June the Justices had barred graduation prayers when led by members of the clergy; in response, some conservatives have been urging students to lead their own prayers. Free-Speech Decision

In the Long Island case, the Court based its decision principally on the First Amendment's guarantee of freedom of speech, holding that the Government cannot constitutionally discriminate against the expression of certain viewpoints on the basis of content.

The Court has applied that principle in many contexts over the years, and today's ruling had been urged by a number of civil liberties groups that often clash with organized religion, including the American Civil Liberties Union, People for the American Way and Americans United for Separation of Church and State.

Eliot Mincberg, legal director for People for the American Way, called the ruling "a balanced decision that upholds free speech without causing problems for church-state separation." Inroads for Religion Seen

But he as well as several Jewish groups, including the Anti-Defamation League of B'nai B'rith and the Religious Action Center of Reform Judaism, said they were troubled by the Court's refusal to hear the appeal in the student prayer case.

The combination of the Court's two actions today "can't help but give encouragement to more religion in the public schools," said Steven Freeman, director of legal affairs for the Anti-Defamation League. Mr. Mincberg said the Court's refusal to hear the case "virtually assures another year of controversy in schools nationwide about the volatile issue of graduation prayer."

Jay Sekulow, chief counsel of the American Center for Law and Justice, a conservative group, who argued the Long Island case, said the decision demonstrated that "free speech is protected under the Constitution, and that includes religious free speech."

The case was brought in 1990 by an evangelical Christian church, Lamb's Chapel, in Center Moriches, L.I. The church had asked permission from school officials to use a room in the Center Moriches High School after hours to show a six-part film series presenting a "Christian perspective" on family life and child rearing.

The school district refused on the basis of a policy that barred the use of school premises "by any group for religious purposes," while at the same time permitting "social, civic, or recreational use" of school buildings by community groups. That policy was based on a provision of state education law, known as Section 414, that state courts and officials had interpreted as prohibiting religious groups from using school buildings.

Both the Federal District Court in Brooklyn and the United States Court of Appeals for the Second Circuit, in Manhattan, upheld the district's refusal to permit the film series, saying that the policy drew a permissible line between religious and nonreligious use of school buildings.

But writing for the Court today, Justice Byron R. White said that the district's refusal was "plainly invalid" under the Supreme Court's precedents because it amounted to discrimination against speech on the basis of viewpoint. Because family life and child rearing are subjects that the school district permitted other speakers to address, Justice White said, the district could not deny a forum to those wishing to address the subject from a religious viewpoint.

The opinion, Lamb's Chapel v. Center Moriches School District, No. 91-2024, left open the question of whether school districts must permit actual religious worship to take place on school property.

Although the basis for the decision today was primarily free speech, the ruling was also notable for the Court's discussion of its precedents on the separation of church and state.

The school district had defended its policy partly on grounds that to permit religious use of school property would violate the clause of the First Amendment that prohibits official "establishment" of religion. The Court concluded that equal-access use of the schools would present no such constitutional problem.

Over the vigorous and colorful protest of Justice Antonin Scalia, who refused to sign Justice White's opinion for this reason, the Court almost in passing reaffirmed its long-disputed precedent that set out a three-part test for determining when a Government practice amounts to an unconstitutional establishment of religion.

The precedent, Lemon v. Kurtzman, which dates to 1971, provides that a practice will survive an establishment clause challenge as long as it has a secular purpose, does not advance or inhibit religion as its principal effect and does not foster an excessive entanglement with religion. Precedent of the Living Dead

Conservative Justices have long criticized the Lemon precedent, which has served to invalidate public aid to parochial schools and various public religious observances. But although it has been on the brink of oblivion for years, the precedent has survived.

"Like some ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad after being repeatedly killed and buried," Justice Scalia said, "Lemon stalks our establishment clause jurisprudence once again, frightening the little children and school attorneys of Center Moriches."

In a footnote, Justice White commented that "while we are somewhat diverted by Justice Scalia's evening at the cinema," the Lemon precedent, "however frightening it might be to some, has not been overruled."

In the case involving student-led graduation prayers, the Court refused to hear an appeal from a ruling last November by the Federal appeals court in New Orleans.

That ruling followed by five months the High Court's decision, in a case from Providence, R.I., that public schools could not permit members of the clergy to offer prayers at graduations. Now the question of whether student-led prayer violates the letter or spirit of last year's decision in Lee v. Weisman is being contested across the country. Prayers Not Authorized

The case today, Jones v. Clear Creek Independent School District, No. 92-1504, was the first case on the question to reach the Court, and the Justices may have decided to see how other courts handle the issue before granting review themselves.

Mr. Sekulow of the American Center for Law and Justice, which has been encouraging students to lead graduation prayers, said today's ruling "affirms that allowing student prayer at a graduation ceremony falls in line with existing Supreme Court precedent."

Officials of the American Civil Liberties Union, which had sued in several states to block such prayers, emphasized that the Court did not authorize school-approved prayers.

"My fear is that school administrators, who are under great pressure from parents and students, may use today's decision as their excuse," said Kent Willis, executive director of the group's Virginia affiliate. "Approved prayer during public school ceremonies still tramples over the last 40 years of Supreme Court cases."